False Light Invasion of Privacy: Untangling the Web of Uncertainty Ruth Walden

Hastings Communications and Entertainment Law Journal

Volume 9 | Number 3 Article 1

1-1-1986 False Light Invasion of Privacy: Untangling the Web of Uncertainty Ruth Walden

Emile Netzhammer

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Recommended Citation Ruth Walden and Emile Netzhammer, False Light Invasion of Privacy: Untangling the Web of Uncertainty, 9 Hastings Comm. & Ent. L.J. 347 (1986). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol9/iss3/1

This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. False Light Invasion of Privacy: Untangling the Web of Uncertainty

by RUTH WALDEN* and EMILE NETZHAMMER**

Introduction In 1890, Samuel D. Warren and Louis D. Brandeis proposed that a new branch of tort law be recognized to protect the "sacred precincts of private and domestic life" from invasion by "[i]nstantaneous photographs and newspaper enterprise .... 1 Seventy-seven years later, in Time, Inc. v. Hill,2 the United States Supreme Court first decided a case involving an alleged violation of the "right of privacy" by a medium of mass communication. Although Time, Inc. v. Hill was the result of instanta- neous photographs and journalistic enterprise, it is doubtful that Warren and Brandeis would have recognized the case as falling within the conceptual parameters of the "right of the 3 individual to be let alone" which they had outlined. The Hill suit was based on a magazine's misrepresentation of a matter of public interest and concern -the experiences of a family held hostage in their home by escaped convicts.4 De- spite the fact that the Hill family attempted to avoid publicity, the hostage incident, which was followed by a gun battle be-

* Assistant Professor, School of Journalism, University of North Carolina at Chapel Hill. B.A., University of Wisconsin-Madison, 1970; M.A., University of Wis- consin-Madison, 1970; Ph.D., University of Wisconsin-Madison, 1981. ** Assistant Professor, Department of Broadcasting, Journalism and Speech, State University of New York College at Buffalo, effective Sept. 1, 1987. B.A., Loyola University of New Orleans, 1981; M.S., University of Utah, 1984; Ph.D., University of Utah, 1987. 1. Warren & Brandeis, The Right to Privacy, 4 HARV. L REV. 193, 195 (1890). 2. 385 U.S. 374 (1967). 3. Warren & Brandeis, supra note 1, at 205. 4. 385 U. S.at 378. The Feb. 28, 1955 LtIfe magazine article and photo layout that led to the Hill suit falsely stated that a novel, a Broadway play, and an upcoming film were all based on the experiences of the Hill family. The photos, taken in the Hill family's former home where the crime had occurred, inaccurately implied that the family had been subjected to violence and abuse during the incident. IE at 376-78, 391-M. COMM/ENT L. J. [Vol. 9:347 tween the convicts and police, became major news.5 An accurate article about the incident could not have been deemed an invasion of the family's right of privacy. But the falsity of the actual publication led the New York courts to hold Time, Inc. liable for invasion of privacy. The decision was ultimately reversed by the United States Supreme Court twelve years after publication of the feature.7 In reversing, the Court held that a plaintiff in a false light action resulting from the publication of a matter of public interest can recover only upon a showing of actual malice, that is, "that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth."' A comparison of the Hill case with the Warren-Brandeis approach clearly illustrates "how the law has grown in channels foreign to the original conceptual framework."9 Hill presents an example of the third of four categories of invasion of privacy first recognized by Dean William Prosser ° and eventually incorporated into the American Law Institute's Restatement of the Law of Torts.1 This category is generally referred to as "false light" and consists of giving "publicity to a matter concerning another which places the other before the public in a false light."' 2 Writing in 1970, Professor Don R. Pember noted: "While it is difficult to see what this kind of publication has in common with the traditional concept of invasion of privacy, this hybrid version of the tort nevertheless has grown to be an active area of the law."'" False light invasion of privacy continues to be an active but extremely troublesome area of the law, surrounded by unset- tled issues and unanswered questions. 4 The most fundamental

5. D. PEMBER, PRIVACY AND THE PRESS: THE LAW, THE MASS MEDIA, AND THE FnsT AMENDMENT 210-12 (1972). 6. See infra notes 43-45 and accompanying text. 7. Hill v. Hayes, 207 N.Y.S.2d 901 (1960), qff'd, 18 A.D.2d 485 (1963), off'd., 15 N.Y.2d 986 (1965), rev'd sub nom. Time, Inc. v. Hill, 385 U.S. 374 (1967). 8. 385 U.S. at 388. 9. D. PEMBER, supra note 5, at 244. 10. Prosser, Privacy, 48 CALn. L. REV. 383, 389 (1960). 11. RESTATEMENT (SECOND) OF ToRTs §§ 652A-E (1981) [hereinafter SEcOND RE- STATEMENT]. Section 652A identifies the four categories and succeeding sections discuss them in detail: intrusion, 652B; appropriation, 652C; public disclosure of private facts, 652D; and false light, 652E. 12. Id. § 652E. See also Prosser, supra note 10, at 398-401. 13. D. PEMBER, supra note 5, at 243. 14. See, e.g., Ashdown, Media Reporting and Privacy Claims-Declinein Consti- tutional Protectionfor the Press, 66 Ky. L.J. 759 (1977-1978); Emerson, The Right qf 19871 FALSE LIGHT problem is determining the proper conceptual definition of false light invasion of privacy. Central to sorting out that issue is a determination of what relationship, if any, exists between false light and defamation, and between false light and public disclosure of private facts, another of Prosser's four categories of invasion of privacy.'5 Perhaps the most vivid, and troubling, empirical manifestation of the conceptual confusion is judicial and scholarly uncertainty over when the actual malice standard should be applied in false light actions.' The question, in es- sence, is whether applicability of the actual malice rule in false light actions should be dependent upon the public status of the plaintiff or upon whether the offending report deals with a matter of legitimate public interest. Confusion over application of the actual malice requirement, though, is merely sympto- matic of the deeper and more critical confusion over the very nature of the false light tort and the personal interests it is designed to protect. This article addresses both the symptom and the underlying malady. The central thesis is that the law of privacy was created to protect interests significantly different from those protected by the law of defamation. Therefore, the law of defamation should not be used to inform the law of false light. In- stead, analogies should be drawn between false light and the related privacy tort of disclosure. Use of the actual malice rule should be governed by analysis of the conceptual definition of false light and its relationship to the law of privacy in general, rather than by resort to surface similarities between false light and defamation. This article begins by briefly reviewing the history of the actual malice rule as applied in defamation and false light actions.

Privacy and Freedom qf the Press, 14 HARv. C.R.-C.L. L. REV. 329 (1979); Hill, Defa- mation and Privacy Under the First Amendment, 76 CoLUM L. REV. 1205 (1976); Note, False Light Invasion Qf Privacy? 15 TuLSA L.J. 113 (1979). 15. Prosser, supra note 10, at 392-98. See also SECOND RESTATEmENT, supra note 11, § 652D. 16. See, ag., Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091, rehig denied, 744 F.2d 94 (5th Cir. 1984), cert denied, 469 U.S. 1107 (1985); Fitzgerald v. Penthouse Intl, Ltd., 525 F. Supp. 585, 602 (D. Md. 1981), revd in part, 691 F.2d 666 (4th Cir. 1982); Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285, 1288 (D.D.C. 1981); Rinsley v. Brandt, 446 F. Supp. 850, 854 (D. Kan. 1977); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 888 (1981), cert. denied, 456 US. 975 (1982); Davis v. High Society Magazine, Inc., 90 A.D.2d 374, 457 N.Y.S.2d 308, 316 (1982), cert denied, 456 U.S. 975 (1982); SECOND RESTATEMENT, 8upra note 11, at § 652E caveat and comment d; Ashdown, supra note 14, at 781; HIll, supra note 14, at 1274. COMM/ENT L. J. [Vol. 9:347

Next, it discusses scholarly commentary addressing the conceptual definition of false light and the relationships between false light and defamation and disclosure of private facts. The article then surveys cases decided by state and federal courts during the past decade to illustrate how lower courts have coped in- consistently with the uncertain application of the actual malice rule and with the overall conceptualization of false light. Fi- nally, the authors suggest the appropriate conceptualization of false light and the standard to be used in determining when actual malice is constitutionally required in false light actions. I Uncertainty Created In New York Times Co. v. Sullivan, 7 the United States Supreme Court first applied the actual malice rule, holding that the United States Constitution requires elected public officials to prove knowledge of falsity or reckless disregard for the truth to prevail in libel actions "against critics of their official conduct."'" Three years later, the Court extended the actual malice rule to defamation actions brought by public figures. 9 In 1967, the Supreme Court also heard Time, Inc. v. Hill,20 its first false light invasion of privacy case. The primary task of the Court in Hill was to determine the standard of fault to apply in such invasion of privacy cases. The Court adopted the actual malice standard, deciding that a plaintiff in an invasion of privacy action involving "false reports of matters of public interest" could not recover absent a showing "that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth."'1 Writing for the Court, Jus- tice Brennan stated: We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture2 or portrait, particularly as related to non-defamatory matter. 2

17. 376 U.S. 254 (1964). 18. Id. at 283. 19. Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967). 20. 385 U.S. 374. 21. Id. at 388. Although the Court provided no definition of "matters of public interest," it noted, 'We have no doubt that the subject of the Life article, the opening of a new play linked to an actual incident, is a matter of public interest." Id. 22. Id. at 389. 19871 FALSE LIGHT

In what appeared to be the logical extension of Hill, in 1971 a plurality of the Supreme Court applied the actual malice requirement to defamation cases involving reports of general or public interest.2 Three years later, however, a five-member majority of the Court explicitly rejected that expanded standard. In Gertz v. Robert Welch, Inc.,24 the Court established a defamation standard that focused on the status of the plaintiff. The Court held the actual malice standard applicable only to public officials and public figures.2 The Court declared that private defamation plaintiffs need only prove negligence.2 However, the Court did not indicate whether, by repudiating the matter-of-public-interest standard in defamation actions, it intended similarly to repudiate this standard with respect to privacy actions. Cantrell v. Forest City Publishing Co.,2 handed down six

23. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). 24. 418 U.S. 323 (1974). 25. Id. at 342-43. The Court has defined public officials as "at the very least... those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). The Court has identified two types of public figures: all-purpose public figures., persons who "occupy positions of such persuasive power and influence that they are deemed public figures for all purposes;" and limited public figures, individuals who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). 26. Id. at 347-48. In two recent defamation cases, the United States Supreme Court applied a matter-of-public-concern standard, but not as a basis for determining the level of fault required for plaintiffs to prevail. In Dun & Bradstreet, Inc. v. Green- moss Builders, Inc., 472 U.S. 749 (1985), the Court held that a private plaintiff in a defamation case resulting from "speech involving no matters of public concern" could collect punitive and presumed damages absent a showing of actual malice. Id.at 761. In Philadelphia Newspapers, Inc. v. Hepps, 106 S. Ct. 1558 (1986), the Court held that a private-figure plaintiff bears the burden of proving falsity if the allegedly defama. tory speech involved a matter of "public concern." Id. at 1559. In Hepps, Justice O'Connor wrote that, taken together, Gertz and Dun & Bradstreet established "two forces that may reshape the common-law landscape to conform to the First Amend. ment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern." Id. at 1563. It is important to note that in Dun & Bradstreetand Hepps, the Court used the term public concern, not public interest. In Hepps, the Court said that the allegedly defamatory article concerned "the legitimacy of the political process, and therefore clearly 'matters of public concern."' Id. at 1565. Assuming the choice of language was purposeful, it appears that the Court was restricting its holding to speech on topics that not only interest the general public, but also bear some relationship to the common welfare. Furthermore, in both Dun & Bradatreet and Heppa, the Court reaf- firmed. the Gertz public figure/private figure distinction as the basis for determining the level of fault required for plaintiffs to prevail in defamation cases. 27. 419 U.S. 245 (1974). COMM/ENT L. J. [Vol. 9:347 months after Gertz, did little to clarify the matter. Cantrell was a false light case involving a story in the Cleveland Plain Dealer that implied that a conversation took place between a reporter and Margaret Cantrell, the widow of a man killed in a bridge disaster. Mrs. Cantrell, however, had not been at home at the time of the reporter's visit to her house, and had not spoken with the reporter.2 The Supreme Court acknowledged the matter-of-public-interest standard established in Hill and de- termined that the trial judge in Cantrell,unlike the trial judge in Hill, had properly instructed the jury "that liability could be imposed only" upon a finding of knowing or reckless falsification, that is, actual malice.2 Because knowledge of falsity was present in Cantrell,the Supreme Court saw no need to address the broader question of when actual malice might not be necessary in false light actions. The Court explicitly reserved the question of whether the Hill standard survived Gertz, stating. (Tihis case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false light cases.30 In the year following Cantrell, the Supreme Court heard its first case involving public disclosure of private facts. In Cox Broadcasting Co. v. Cohn,"1 the father of a teenage girl who died as a result of a rape sued for invasion of privacy after a television station broadcast the girl's name. The Georgia Supreme Court rejected the station's first amendment defense, ruling that a state statute making it a misdemeanor to broadcast the name of a rape victim indicated that, in Georgia, a rape victim's name was not a matter of public concern.32 In a cautiously worded opinion, the United States Supreme Court reversed. Although the case presented the Court with the opportunity to constitutionalize the matter-of-public-interest defense to disclosure actions,' Justice White, writing for

28. Id. at 247-48. 29. Id. at 249-50. 30. Id. at 250-51 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 323 (1974)). 31. 420 U.S. 469 (1975). 32. 231 Ga. 60, 66; 200 S.E.2d 127, 134 (1973). 33. 420 U.S. 469 (1974). 34. As defined by the Restatement, disclosure consists of giving "publicity to a matter concerning the private life of another... if the matter publicized is of a kind 1987] FALSE LIGHT the majority, chose a much narrower basis for reversal. The Court held that the first and fourteenth amendments prohib- ited the states from "impos[ing] sanctions on the publication of truthful information contained in official court records open to public inspection. ' Rather than declaring the report constitutionally protected because it dealt with a matter of legitimate public interest, the Court appeared to be saying that the rape victim's name was not a private fact at all because it had been placed "in the public domain on official court records."s'3 Sup- porting this conclusion was the Court's quotation of the Re- statement of the Law of Torts: "There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life which are matters of public record... .,"'T In Cox, the Court also reiterated its holding in Time, Inc. v. Hill that actual malice was required for a plaintiff to prevail in a false light action resulting from the publication of a matter of public interest. The Court went on to say that "whether truthful publication of very private matters unrelated to public affairs could be constitutionally proscribed" remained an unanswered question.s In a footnote in a concurring opinion, Justice Powell declared that the Court's opinion in Gertz "call[ed] into question"40 the continued applicability of the Hill matter-of-public-interest standard. He concluded, however, that the Court had not yet been 41 called on to settle the issue. II Uncertainty Acknowledged Much of the literature on false light in the last three decades has addressed the relationships between false light and defama- that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public." SECOND RESTATEMENT, supra note 11, § 652D. The "not of legitimate concern to the public" provision is generally referred to as the newsworthiness defense. 35. 420 U.S. at 495. 36. Id. 37. Id. at 494 (quoting RESTATEMENT (SEcoND) OF TORTS (Tent Draft No. 13, Apr. 27, 1967) § 652D comment C). 38. 420 U.S. at 490. 39. Id. at 491. 40. IL at 498 n.2 (Powell, J., concurring). 41. Xd COMM/ENT L. J. [V/ol. 9:347 tion, and false light and disclosure of private facts.' Those relationships are central to the question of the applicability of the actual malice requirement. If false light and defamation are indistinguishable or, at the very least, closely related torts designed to protect the same individual interest, then using the same standard for determining applicability of the actual malice requirement in both makes sense. If false light and defamation are unrelated, or only tangentially related, and protect distinct personal interests, then a case can be made for different applications of the actual malice requirement. Furthermore, if false light and disclosure are essentially similar torts protecting similar interests, then use of the public- interest standard in false light cases is justifiable. Liability for disclosure of private facts requires that the "matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."' False light also requires proof of offensiveness, but does not carry the absolute privilege for the reporting of newsworthy material that disclosure does.44 The reason, of course, is that disclosure involves true information; false light involves falsehoods. Additionally, if the law of false light and the law of disclosure protect similar personal interests, the justifications that support the newsworthiness defense to disclosure warrant use of the same standard for false light, that is a fault requirement based on a public interest standard. The newsworthiness defense in disclosure recognizes that the individual's interest in shielding his or her life from public scrutiny must bow before the public's interest in having access to information of legitimate public concern in an open society. Assuming the false light tort protects the same individual interest, the presence of a non-calculated or non-reckless false-

42. See Ashdown, supra note 14; Beytagh, Privacy and a Free Presa"A Contempo- rary Conflict in Values, 20 N.Y.L.F. 453 (1975); Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser,39 N.Y.U. L. REV. 962 (1964); Emerson, supra note 14; Kalven, Privacy in Tort Law-Were Warren and Brandeis Wrong? 31 LAW & CONTEMP. PRoBS. 326 (1966); Nimmer, The Right to Speak from Times to Time: FirstAmendment Theory Applied to Libel and Misapplied to Privacy, 56 CA. LIF. L. REV. 935 (1968); Pember & Teeter, Privacy and the Press Since Time, Inc. v. Hill, 50 WASH. L. REv. 57 (1974); Prosser, supra note 10; Wade, Defamation and the Right of Privacy, 15 VAND. L. REV. 1093 (1962). 43. SECOND R&5TATEMENT, supra note 11, § 652D. 44. Id. § 652E. 1987] FALSE LIGHT hood ought not affect the balance between the individual interest and the public interest in access to information on matters of public concern. As the Supreme Court stated in Hill, "In this context [matters of legitimate public concern], sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us."45 The Restatement of the Law of Torts recognizes, clearly and with great influence, the uncertainty that exists regarding the relationship between defamation and false light and the applicability of the actual malice requirement. A Restatement comment on the relationship between defamation and false light notes that a publication placing someone in an "objectionable false light or false position" often will also be defamatory.46 "In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or-both, although he can have but one recovery for a single instance of publicity. '47 In a later section, the Restatement acknowledges uncertainty over "the extent to which common law and statutory restrictions and limitations that have grown up around the action for defamation are equally applicable when the action is one for invasion of privacy by publicity given to falsehoods concerning the plaintiff. ' The perceived similarity between defamation and false light underlies the Restatement's approach to the constitutional requirement of actual malice as well. The Restatement lists two requirements for a false light claim. First, the false light in

45. 385 U.S. 374, 389 (1967). 46. SEcoND RESTATEMENT, supra note 11, § 652E comment b. 47. Id. 48. Id. § 652E comment e. Second Restatement lists such restrictions as including the requirement that plaintiff plead and prove special damages when the words are not defamatory per se and limitations imposed by retraction statutes and statutes requiring the filing of a bond for costs. Second Restatement does not refer to the applicability of statutes of limitations, but that issue has been raised by a number of lower courts. See infra note 149 and accompanying text. Second Restatement declares that "it is arguable" such restrictions "should not be successfully evaded by proceeding upon a different theory of later origin, in the development of which the attention of the courts has not been directed to the limitations." The comment notes the lack of authority on the issue and concludes that decisions must be based on the particulars of the restriction and the case. "[N]o generalization can be made." Id. See also Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1133 (7th Cir. 1985). COMM/ENT L. J. [Vol. 9:347 which plaintiff was placed must be "highly offensive to a reasonable person," and second, defendant must have "had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."49 The second requirement seems to indicate that actual malice is required in all false light actions. A caveat, however, is attached to the definition of false light: The Institute takes no position as to whether there are any circumstances under which recovery can be obtained under this Section if the actor did not know of or act with reckless disregard as to the falsity of the matter publicized and to the false light in which the other would be placed but was negligent in regard to these matters. ° The caveat is explained in a comment, which summarizes the history of the actual malice requirement from New York Times through Cantrell. According to the comment, "[t]he full extent of the authority [of Hill ] ... is presently in some doubt.... The effect of the Gertz decision upon the holding in Time, Inc. v. Hill has thus been left in a state of uncertainty."'5' The conclusion underscores the presumption that defamation and false light are intimately related by suggesting that the justification for maintaining the Hill matter-of-public-interest standard is that "the injury is not so serious when the statement is not defamatory."52 The implication is that the defamation and false light torts protect the same personal interest, but that false light results in a somewhat lesser degree of harm to that interest. Writing four years before the Supreme Court had even ar- ticulated the actual malice requirement in New York Times, a leading scholar on tort law, Dean William Prosser, contended that the false light tort protected the same personal interest as defamation. "The interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation."53 In fact, Prosser suggested that the false light category of privacy might be "capable of swallowing up and engulfing the whole law of public defamation."" Prosser also saw "a re- semblance to disclosure; but the two differ in that one involves

49. SECOND RESTATEMENT, supra note 11, § 652E. 50. Id. § 652E caveat. 51. Id. § 652E comment d. 52. Id. 53. Prosser, supra note 10, at 400. 54. Id. at 401. 1987] FALSE LIGHT truth and the other lies, one private or secret facts and the other invention. Both require publicity."' 5 In the privacy section of his Handbook on the Law of Torts, published in 1971 and based substantially on his earlier article, Prosser reiterated the notion that false light may or may not be defamatory. However, the important question, he argued, is whether the published material would be objectionable to a reasonable person of ordinary sensibilities, the same offensiveness criterion used in disclosure actionsM Several scholars have expanded on the link Prosser perceived between defamation and false light. Dean John Wade of Vanderbilt Law School, for example, suggested a strong enough relationship among defamation, disclosure and false light to justify the merger of all three into a single tort-intentional infliction of mental suffering.57 Professor Edward J. Bloustein agreed with Prosser that false light actions involve reputation, but took issue with Prosser's categorization of privacy invasion as four distinct torts.m Bloustein contended the law of privacy should be used to explain defamation law, not vice versa. Ac- cording to Bloustein, defamation and all forms of invasion of same personal interest, protec- privacy involve essentially the 5' 9 tion of "individual personality and dignity. Other commentators have rejected the theory that defamation and false light invasion of privacy violate the same personal interest. While the law of defamation exists to protect reputation, Professor Melville Nimmer asserted: "The right of privacy protects not reputation, but the interest in maintaining the privacy of certain facts."' Professor Francis X. Beytagh described false light as frequently being "mistakenly regarded as the stepchild ... of defamation, despite the very different interests that the concepts deal with and the disparate interests they seek to protect."' The 1984 edition of Prosserand Keeton on the Law of Torts still acknowledges that defamation and false light actions often will result from the same publication, but goes on to declare: "The action for defamation and the ac-

55. Id. at 400. 56. W. PROSSER, HANDBOOK OF THE LAw OF TORTS 813 (4th ed. 1971). 57. Wade, supra note 42, at 1124-25. See also Pember & Teeter, supra note 42, at 90-91. 58. Bloustein, supra note 42, at 971-72. 59. Id. at 991. 60. Nimmer, upra note 42, at 958. 61. Beytagh, supra note 42, at 459. See also Kalven, upra note 42, at 341. COMM/ENT L. J. [Vol. 9:347/ tion for invasion of privacy should be carefully distinguished. The former is to protect a person's interest in a good reputation.... The latter is to protect a person's interest in being let alone..... "62 Nimmer," Beytagh, 4 Kalven,6 and others," though, in rejecting a link between defamation and false light, have urged recognition of the relationship between false light and disclosure of private facts. According to Nimmer, false light is simply the logical and necessary extension of the disclosure tort. "The injury to the plaintiff's peace of mind which results from the public disclosure of private facts may be just as real where that which is disclosed is not true."6 7 Kalven contends that the plaintiff in a privacy action should not be required "to prove the truth of the assertion to state a cause of action" nor should the plaintiff "be allowed to bolster a claim for privacy on the ground that a statement is false." 6 A statement that invades an individual's privacy causes the same injury whether it is true or false.6 9 While authors have tended to disagree over whether false light invasion of privacy should be viewed as akin to defamation or disclosure, scholars writing after Gertz have agreed that Gertz apparently superseded Hill.70 None, however, has ex- pressed that view with certainty. Alfred Hill, for example, concluded that "it is likely that the Court will now apply to the false light cases the refinements evolved in Gertz,"'" and Ger- ald Ashdown suggested that the Court was moving "away from the concept of public interest and back to the character of the party" in defamation and privacy cases.72 . In sum, legal scholars have argued that the false light tort is substantially similar to both defamation and disclosure. The

62. W. PROSSER & W.P. KEETON ON THE LAW OF ToRTs 864 (5th ed. 1984). Since Prosser died in 1972, alterations in the latest edition of the handbook presumably re- flect editor W. Page Keeton's views. 63. Nimmer, supra note 42, at 963-64. 64. Beytagh, supra note 42, at 502-03. 65. Kalven, supra note 42, at 340-41. 66. E.g., Ashdown, supra note 14, at 781-82; Emerson, supra note 14, at 345. 67. Nimmer, supra note 42, at 963. 68. Kalven, supra note 42, at 340-41. 69. I& 70. See, e.g., Ashdown, supra note 14, at 781; Beytagh, supra note 42, at 474, 482; Hill, supra note 14, at 1274. 71. Hill, supra note 14, at 1274. 72. Ashdown, supra note 14, at 781. 1987] FALSE LIGHT crucial question in determining when a plaintiff should be required to prove actual malice, however, is whether the false light tort protects an interest similar to that protected by the law of defamation, that is, reputation, or an interest protected by the law of privacy, that is, the right to be free from un- wanted publicity. III Uncertainty Applied In the seven years between the Supreme Court's decisions in Time, Inc. v. Hil 7 3 and Gertz v. Robert Welch, Inc., 7 lower courts apparently have had little difficulty in determining when the actual malice standard should be applied in false light invasion of privacy actions. Citing Hill, courts routinely focused on the nature of the issue discussed in the report to ascer- tain whether it was a matter of public interest.75 The Supreme Court's plurality opinion in Rosenbloom v. Metromedia, Inc.'6 in 1971, declaring the actual malice requirement applicable in defamation actions resulting from reports on matters of public concern, provided additional support for application of the Hill rule.77 After Gertz and Cantrell in 1974, however, the situation changed. With no clear guidance from the Supreme Court and admissions of uncertainty from the experts in tort law, lower courts began debating when to apply the actual malice rule in false light litigation. As the following survey shows, some courts have continued to follow Hill, focusing on the subject matter of the report. Other courts have used the distinction between public and private figures applied in Gertz, focusing on the status of the plaintiff. In some cases, the court's choice of standard is so unclear that it is impossible to determine whether Hill or Gertz is being used as the basis for decision.

73. 385 U.S. 374 (1967). 74. 418 U.S. 323 (1974). 75. See, e.g., Varnish v. Best Medium Publishing Co., 405 F.2d 608 (2d Cir. 1968); Kent v. Pittsburgh Press Co., 349 F. Supp. 622 (W.D. Pa. 1972); Cordell v. Detective Publications, Inc., 307 F. Supp. 1212 (E.D. Tenn. 1968), aff'd 419 F.2d 989 (6th Cir. 1969). 76. 403 U.S. 29 (1971). 77. See, e.g., Kent v. Pittsburgh Press Co., 349 F. Supp. 622 (W.D. Pa. 1972) (Rosen- bloom standard applied to plaintiff's defamation claim, and Hill held to control the false light claim.). COMM/ENT L. J. [Vol. 9:347

A. Opinions Utilizing the Matter-of-Public-Interest Standard One of the clearest judicial statements that the Hill approach to false light litigation survived Gertz came from the Arkansas Supreme Court in 1979. In Dodrillv. Arkansas Democrat,78 the court held that a lawyer, suspended from practice because of unethical conduct, was not a public figure and, therefore, had to prove only negligence in his defamation claim.79 However, the Arkansas Democrat's erroneous report that Dodrill had failed the bar exam when his suspension was up dealt with a matter of public concern, and, therefore, Dodrill needed to prove actual malice to sustain his false light claim against the paper. The court stated: Where the plaintiff is not a public figure and the publication is of matters of general or public concern, the rule laid down in Time, Inc. v. Hill ...dictates that a plaintiff must prove actual malice and that decision remains the law with respect to invasion of privacy actions. Later decisions of the Supreme Court which have retreated from the malice standard in private individual defamation actions have not eroded the rule of Time, Inc. v. Hill... as to "false light" privacy actions.80 In a footnote, the court said that the U.S. Supreme Court "consciously abstained from examining the status" of Hill in its decision in Cantrell."' "It is the duty of this court to follow the mandate of... Hill until the rule announced therein has been modified or overruled." 2 In 1981, the Kentucky Supreme Court also concluded that Hill remained applicable in false light actions, but indicated it would be receptive to a fault standard focusing on the status of the plaintiff." In the first sentence of its opinion in McCall v. Courier-Journal& Louisville Times Co., the court declared that this was a case involving defamation and invasion of pri-

78. 265 Ark. 628, 590 S.W.2d 840 (1979), cert denied, 444 U.S. 1076 (1980). 79. Id. at 636-37; 590 S.W.2d at 844. 80. Id. at 639; 590 S.W.2d at 845. 81. Id. at 639 n.9; 590 S.W.2d at 845 n.9. 82. Id. at 639 n.9; 590 S.W.2d at 845, n.9. See also Machleder v. Diaz, 618 F. Supp. 1367, 1373-74 n.4, (S.D.N.Y. 1985), qff'd in part and rev'd in part, 801 F.2d 46 (1986); Fellows v. National Enquirer, 165 Cal. App.3d 512, 211 Cal. Rptr. 809, 824 (2d Dist. 1985), review granted,215 Cal. Rptr. 853, 701 P.2d 1171 (1985); Goodrich v. Waterbury Republican-American, 188 Conn. 107,130 n.22, 448 A.2d 1317,1330 n.22; Dean v. Guard Publishing Co., 73 Or.App. 656, 660 n.4, 699 P.2d 1158, 1160 (1985). 83. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky. 1981), cert. denied, 456 U.S. 975 (1982). 1987] FALSE LIGHT vacy claims by a "private" citizen." However, the court went on to say that the Louisville Times article "dealt with a matter of public interest, viz., possible bribery of a judge or 'fixing a case.' ,,)5 The court acknowledged that Hill required proof of actual malice in cases involving reports on matters of public interest even when "the injured party was a private individual.''se The court stated: Whether Gertz will be used to modify Time v. Hill is only spec- ulation. Until the Supreme Court has spoken, we must comply with the ruling in Hill, and recovery is predicated on the standards set out therein. In the event the Gertz rule is applied, we believe the desirable standard of fault is that of simple negligence which we have adopted in this opinion for libel cases.8 7 In Cohn v. NBC," the New York Supreme Court ultimately applied the Hill matter-of-public-interest standard after a lengthy and confusing discussion of when actual malice is required in New York false light cases.8 9 On appeal, the appellate divi-

84. Id. at 883. 85. Id. at 885. 86. Id. at 888. 87. Id. 88. 3 MEDIA L REP. (BNA) 1999 (N.Y. Sup. Ct. March 22, 1978), modified, 67 A.D.2d 140, 414 N.Y.S.2d 906 (1979), qff'd, 50 N.Y.2d 885,408 N.E.2d 672, 430 N.Y.S.2d 265, cert. denied, 449 U.S. 1022 (1980). 89. 3 MEDIA L. REP. (BNA) at 2003-05. Perhaps the court's discussion can be viewed as simply an accurate reflection of the lengthy and confusing history of false light in New York. The state's privacy law, an amendment to the New York Civil Rights Law, addresses only the use of an individual's name or likeness for trade or advertising purposes without consent. N.Y. CIrv. RIGHTS LAw §§ 50-51 (McKinney Supp. 1987). New York courts, however, "have broadly construed what constitutes commercial misappropriation of a person's name or picture under the statutes." Davis v. High Society Magazine, Inc., 90 A.D.2d 374, 379, 457 N.Y.S.2d 308, 313 (1982). The "purposes of trade" language has been interpreted to include those uses "afflicted with substantial falsification." Id. at 381,457 N.Y.S.2d at 314. Indeed, the Hill case was an action under New York law. A New York high court ruling handed down a few months after Hill, though, has caused some confusion over whether focus should be placed on the subject matter of the report or the status of the plaintiff in cases based on fictionalization. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832 (1967), resulted from an admittedly fictionalized biography of baseball star Warren Spahn. Prior to the Supreme Court's ruling in Hill, the New York courts held that the biography violated the New York statute. 18 N.Y.2d 324, 221 N.E.2d 543, 274 N.Y.S.2d 877 (1966). The publisher appealed to the United States Supreme Court, and in May 1967, four months after Hill, the Court vacated the New York ruling and remanded the case for consideration in light of the Hill ruling. 387 U.S. 239 (1967). The New York Court of Appeals once again found in favor of Spabn, a result not surprising since actual malice was evident in the publisher's admission that the biography was purposely fictionalized to appeal to a juvenile audience. The problem, however, is that the New York high court focused on Spahn's status as a public figure in discussing the need for proof of actual malice. 21 N.Y.2d at 126, 223 N.E.2d at 842, 286 COMM/ENT L. J. (Vol. 9:347 sion declared plaintiffs public figures for the purpose of their defamation action.90 On the invasion of privacy claim, the appellate court affirmed summary judgment for NBC, declaring: "Mhe subject matter of the film remains a matter of public interest. In the absence of allegation and proof that the advertising was false and published with knowledge of its falsity or disregard of the truth, ... no actionable cause is stated... under the circumstances of this case." 91 While several courts have noted the uncertainty over the im- portance of the plaintiff's status in false light actions, others have applied the matter-of-public-interest standard without comment. For example, in Uhl v. CBS, Inc.,92 the plaintiff was characterized as "a private individual who traveled a few miles from his home to go hunting for a day. He sought no public office, he injected himself into no controversy, he did not seek to have his picture taken although he knew of the presence of a camera crew." 93 Yet, Clare Randall Uhl ended up on nation- wide television in CBS's documentary on hunting, The Guns of Autumn, and he sued for false light invasion of privacy. De- spite Uhl's private status, a federal district court held that proof of knowing or reckless falsehood was necessary to sustain his false light claim. Citing Hill, the court stated: "We will ac- cept the premise that the rule of New York Times v. Sullivan ...applies to this case, under the extension of that rule to matters of public concern, which include news, information, education and entertainment,... and that invasion of privacy claims must also face the constitutional standard." In cases in which plaintiffs were public figures or officials,

N.Y.S.2d at 834. While the court cited Hill for the actual malice definition, it never explicitly addressed whether the Spahn biography qualified as a matter of public interest. While it is not unreasonable to read Spahn as assuming that a biography of a sports hero was as much a matter of public interest as a play inspired by a real crime, the "public figure" language of Spahn remains as precedent for courts applying New York law. The Cohn v. NBC court's discussion of this background concludes with what appears to be an attempt at reconciling Hill and Spahn. In a footnote, the court noted that while under Hill "the emphasis... is on the event, it is plain that a public official has a lesser expectancy of privacy than a purely private individual." 3 MEDIA L. REP. (BNA) at 2005, n.7. Why the court used "public official" rather than "public figure" is unclear. Perhaps the explanation is that the plaintiffs were former aides to a U.S. senator. 90. 67 A.D.2d at 153, 414 N.Y.S.2d at 909. 91. Id. at 142, 414 N.Y.S.2d at 908. 92. 476 F. Supp. 1134 (W.D. Pa. 1979). 93. Id. at 1140. 94. Id. at 1139. A jury had awarded Uhl $1 in nominal damages, and the trial judge 19871 FALSE LIGHT some courts also have clearly focused on the subject matter of the report, rather than the status of the plaintiff. In Roberts v. Dover," which involved both defamation and false light claims, the court ruled that Mike Dover, a Tennessee highway patrol officer, was a public official. In addressing Dover's false light claim, the court noted that Hill required "application of the New York Times standard where the published materials concerned matters of public interest." The court then went on to declare that allegations of misconduct leveled at a public official qualified as matters of public interest,9 thus requiring proof of actual malice to sustain the false light claimY7 In Ali v. Playgirl,"s resulting from publication of a picture depicting "a nude black man seated in the corner of a boxing ring," accompanied by verse referring to the figure as "the Greatest,"° the court noted that "the offensive illustration and rhyme are essentially fictional, do not purport to portray newsworthy information and therefore do not embody those factual 'matters of public interest' for which the Supreme Court ex- pressed concern in Time, Inc. v. Hill.'':°° Despite the uncertainty about the relationship between Hill and Gertz reflected in the Restatement of Torts, scholarly commentary and the judicial decisions discussed below, several courts, both state and federal, have continued properly to apply the matter-of-public-interest standard in false light cases. This had denied punitive damages on the ground that Pennsylvania required proof of common law malice to support punitive damages. See also Street v. NBC, 512 F. Supp. 398 (E.D. Tenn.1977), aff'd, 645 F.2d 1227 (6th Cir. 1981), cert. granted, 454 U.S. 815 (1981), cert. dismissed, 454 U.S. 1095 (1981), in which the trial court declared plaintiff was not a public figure for purposes of her defamation claim and, therefore, had to prove only negligence, but, in addressing her invasion of privacy claim, held that actual malice was necessary under Hill and Can- trell. On appeal, the Sixth Circuit ruled that Mrs. Street was a public figure for the defamation action but did not address the false light action. See also Adreani v. Han- sen, 80 111. App.3d 726, 400 N.E.2d 679, 683 (1980); Mechner v. Dow Jones, 4 MEDIA L. REP. (BNA) 1239, 1240 (N.Y. Sup. Ct. Aug. 2,1978), aff'd. 6 MEDIA L. REP. (BNA) 1787 (N.Y. App. Div. June 16, 1980), leave to appeal denied, 7 MEDIA L. REP. (BNA) 1483 (N.Y. May 7, 1981). 95. 525 F. Supp. 987, 990-91 (M.D. Tenn. 1981). 96. I at 995 n.9. 97. Id. See also Alim v. Superior Court, 13 MEDIA L.REP. (BNA) 1528, 1532 (Cal. Ct. App. Sept. 4, 1986); Medeiros v. Northeast Publishing, 8 MEDIA L. REP. (BNA) (Mass. Super. Ct. Oct. 21, 1982); Anderson v. Low Rent Housing Comm'n of Musca- tine, 304 N.W.2d 239 (Iowa 1981). 98. 447 F. Supp. 723 (S.D.N.Y. 1978). 99. Id. at 725, 727. 100. Id. at 728, n.9. COMM/ENT L. J. [Vol. 9:347

standard has been followed in cases involving both public and private persons; however, in only one case, Ali v. Playgirl, did the court fail to find the subject matter of the publication a matter of legitimate public concern. In focusing on the subject matter of the reports, these courts have recognized that the law of invasion of privacy is designed to protect individuals from unwarrantedintrusions upon their private lives. Regardless of whether individuals are private persons like attorney Louis Dodrill, public officials like officer Mike Dover, or public figures like boxer Muhammad Ali, they have an interest in protecting their private lives from public scrutiny. But once an individual, public or private, becomes en- meshed in a matter*of legitimate public interest and concern, the public's interest in a free flow of information becomes paramount. As Justice Brennan wrote in Rosenbloom v. Metromedia:' If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety.10 In Gertz, the Supreme Court rejected that approach for defamation actions, but the Court has not retreated from the matter-of-public-interest standard in false light cases, as the Arkansas and Kentucky Supreme Courts and others have noted. Thus, the courts that have focused on the subject matter of the report not only have recognized the proper conceptualization of false light invasion of privacy, but also have followed the constitutional mandate set forth by the Supreme Court in Hill.

B. Opinions Focusing on the Status of the Plaintiff Some courts that have chosen to focus on the status of the plaintiff have explained their choice of standards by question- ing the continued vitality of Hill. In addition, several courts have emphasized similarities between defamation and false light actions as a justification for applying the Gertz approach.

101. 403 U.S. 29 (1971). 102. Id at 43. 1987] FALSE LIGHT

For example, in Nelson v. Globe International, Inc.," the United States District Court for the Southern District of New York applied a "gross irresponsibility" standard, the so-called gross-departure-from-journalistic-standards test, in a false light action involving a private individual who was the subject of a newsworthy article because of "the similarity between these defamation and privacy act claims."'' 4 The gross-depature- from-journalistic-standards test applied by the court in Nelson is the same standard used in New York in private-figure defamation cases involving matters of legitimate public concern.105 The court chose to apply that fault standard after blatantly misstating the current status of the case law: "Not surprisingly, no court, state or federal, has applied the actual malice standard in this context [false light] to a plaintiff who was neither a public official nor a public figure"'0-clearly an inaccurate conclusion and statement of the law in the light of such cases as Dodrill,McCall, and Uhl, discussed in the preceding section.10° The United States District Court for the District of Kansas also treated defamation and false light as virtually synonymous torts in Rinsley v. Brandt.108 Plaintiff there charged defendant with both defamation and invasion of privacy, but the court found the defamation claim barred by the statute of limitations.'es The court, however, said the plaintiff was both a public official and a public figure "who would have to prove actual malice on the part of defendants" to recover in his privacy action, which was not time-barred 10 "Generally speaking, it may be said that the standards which govern recovery in a defamation action also govern in a false light privacy action .... 'T]he courts have consistently treated false light privacy in essentially the same way they have treated defamation.' """ The

103. 626 F. Supp. 969 (S.D.N.Y. 1986). 104. Id. at 981. See also Fils-Aime v. Enlightenment Press, Inc., 507 N.Y.S.2d 947 (N.Y. App. Term. 1986). 105. See Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 571 (1975). 106. 626 F. Supp. at 980. 107. Uhl v. CBS, 476 F. Supp. 1134 (W.D. Pa. 1979); Dodrill v. Arkansas Democrat, 265 Ark. 223, 590 S.W.2d 840 (1979); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981). See also Machleder v. Diaz, 618 F. Supp. 1367 (S.D.N.Y. 1985); Adreani v. Hansen, 80 111. App.3d 726, 400 N.E.2d 679 (1980). 108. 6 MEDIA L. REP. (BNA) 1222 (D. Kan. Feb. 22, 1980), qffId, 700 F.2d 1304 (10th Cir. 1981). 109. 446 F. Supp. 850, 853 (D. Kan. 1977). 110. 6 MEDIA L. REP. (BNA) at 122. 111. Id. at 1224 (quoting 446 F.Supp. at 854). COMM/ENT L. J. [Vol. 9:347 court cited several law review articles for the premise, but no cases. The key issue in Rinsley, though, was whether defendant's book contained any "false statement of fact.""2 After declaring summary judgment for defendant was appropriate because of lack of falsity, the court went on to gratuitously discuss the fault requirement applicable in false light cases. The court concluded that "the Gertz emphasis on status analysis should be extended to overrule the Hill emphasis on public interest."113 Plaintiff's failure to prove actual malice provided another justification for summary judgment." 4 The Fifth Circuit Court of Appeals also explicitly adopted the view that the Hill matter-of-public-interest standard is no longer applicable. In Wood v. Hustler,115 a false light action brought by a private-person plaintiff, the court, after a lengthy review of United States Supreme Court defamation and privacy cases and analysis of Texas law, declared that Gertz "under- mines the authority of Hill.""' 6 In Dresbach v. Doubleday & Co.,"17 the district court used the similarity between defamation and false light to justify focusing on the status of the plaintiff. Dresbach alleged false light, disclosure of private facts, and defamation in his suit against the author and publisher of a book about the 1961 murders of his parents by his brother. For purposes of the disclosure claim, the court found that the subject matter of the book "cannot be said to be without legitimate public interest" and thus did not constitute unlawful disclosure."' Turning to the false light claim, however, the court declared that since plaintiff was not a public figure, he need prove only negligence, that is, that the passages "were written without the exercise of ordinary care to determine their accuracy.""' 9 Ac-

112. Id. (emphasis in original). 113. Id. at 1233. 114. Id. at 1235. On appeal, the Tenth Circuit focused on the question of falsity. In concluding, however, the appellate court seemed to indicate its agreement with the public/private figure standard: "Because we agree with the district court that the statements Rinsley objects to on appeal are not actionable, we do not decide whether Rinsley is a public figure or public official or whether the district court erred in finding that the defendants acted without malice." 700 F.2d at 1310. 115. 736 F.2d 1084 (1984), rehg denied, 744 F.2d 94 (5th Cir. 1984), cert denied, 469 U.S. 1107 (1985). 116. Id. at 1091. See also Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984). 117. 518 F. Supp. 1285 (D.D.C. 1981). 118. Id. at 1291. 119. Id. 1987] FALSE LIGHT cording to the court, the United States Supreme Court in Gertz and Cantrell "characterized as an open question whether the actual malice standard need apply in all false light cases."' 12 In explaining its decision to use a negligence standard in the false light claim, the court referred to Phillips v. Evening Star News- paper Co. 1 and said that the District of Columbia applies a negligence standard in private person defamation actions. "[N]o reason appears to distinguish false light invasion of privacy from defamation actions in this regard."m But in its discussion of Dresbach's disclosure claim, the court provided an excellent reason for distinguishing between invasion of privacy and defamation actions-claims of privacy must bow to open discussion of matters of public interest in our society. Clearly, this society has put a higher value on open criminal proceedings and on public discussion of all issues than on an individual's right to prvacy. To guard against the possible evils of abuse of power if the criminal justice system were to operate away from the public eye, and of suppression of freedom of thought if writers could not freely explore the causes and handling of past crimes of public interest, the plaintiff's right to bury the past must be sacrificed. Freedom of speech would be crippled if discussions of matters of public interest were narrowly circumscribed2 in the manner suggested by plaintiff to protect privacy,.' The court's failure, however, to recognize the appropriate conceptualization of false light caused it to lose sight of the fact that invasion of privacy, not falsity, is the heart of a false light claim as well; the same societal interests in open discussion that must restrict disclosure claims also govern false light actions. Plaintiff's privacy claims, both disclosure and false light, were based on allegations that the book "expose[d] private information about him which is offensive and objectionable to reasonable persons of ordinary sensibilities."1'2 The gist of the libel claim was that the book identified plaintiff "as a co-conspirator and accessory before and after the fact in the murder of his parents."'' The libel claim rested on passages that plaintiff alleged indicated that he knew of his

120. Id. at 1288. 121. 424 A.2d 78 (D.C. Cir. 1980). 122. 518 F. Supp. at 1288. 123. Id. at 1291 (emphasis added). 124. Id. at 1287. 125. Id. COMM/ENT L. J. [Vol. 9:347 brother's intent to murder their parents, did nothing to prevent the murder of his mother, and told his brother to "shoot him (the father) again."'" In contrast, both the disclosure and false light claims rested on passages that related to plaintiff's childhood and life after the murders, the limited number of visits he made to his brother in jail, his failure to provide financial assistance to his brother and similar statements. The only difference among the alleged privacy-invading statements was that plaintiff disputed the accuracy of some of them.'m In granting summary judgment for defendants on the disclosure claim, the court ex- pressed compassion for Dresbach and sympathized with his desire to protect his privacy, but nonetheless said that permit- ting the disclosure claim to stand would be inconsistent with the first amendment.12s Since Dresbach's false light and disclosure claims were premised on the same types of statements and the same type of injury, the same concern for protecting discussion of matters of public interest should have governed both. He should have been required to prove actual malice to sustain his false light action. While in the cases discussed above the courts explained their reliance on Gertz rather than Hill, the Sixth Circuit in Bichler v. Union Bank and Trust Co.12' treated a false light claim as if it were a defamation claim, with no explanation. The court did not cite Hill, Cantrell,or any other false light cases. Instead, it relied almost exclusively on Gertz and other defamation cases.'30 After stating that "[t]he First Amendment has been read to impose limits upon state laws dealing with libel, slander and otherprivacy-related issues, "131 the court found that plaintiff was neither a total nor limited public figure and, therefore, was not required under the Constitution to prove actual malice. The court's treatment of the false light claim is especially re-

126. Id. at 1293. 127. Id. at 1288-89. 128. Id. at 1291. 129. 715 F.2d 1059 (6th Cir. 1983), vacated 718 F.2d 802, 745 F.2d 1006 (6th Cir. 1984) (en banc). The court, en banc, vacated the panel decision on the basis of Mlchi- gan's qualified privilege, which imposes an actual malice requirement on reports on matters of public interest. 130. The only privacy cases discussed in the opinion were Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), and Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), both disclosure of private facts cases. Cox was used to support plaintiff's disclosure claim, but Virgil was used as part of the discussion of who qualifies as a limited public figure. 131. 715 F.2d at 1063 (emphasis added). 19871 FALSE LIGHT markable in light of the fact that plaintiff's defamation claim was held to be barred by Michigan's statute of limitations.ls 2 Essentially, the court allowed plaintiff to bring his defamation action through the back door in the guise of false light. In four other cases, three arising under New York law and one under Illinois common law, the courts focused on the status of the plaintiffs, all of whom were public figures. In Hotchner v. Castillo-Puche,'s the Second Circuit declared plaintiff a public figure for purposes of his defamation action and stated, "The same standard applies if the public figure sues for invasion of 4 privacy."'1 In Meeropol v. Nizer,135 the sons of Julius and Ethel Rosen- berg charged that Nizer's book, The Implosion Conspiracy, de- famed them and placed them in a false light. After noting that the trial court had held the book dealt with "matters properly within the orbit of public interest and scrutiny," the Second Circuit focused on the public character of the plaintiffs. 1w The court said that the actual malice rule applied "since we are dealing with public figures.""' Sinatra v. Wilson '3s involved an unauthorized biography of singer Frank Sinatra. The district court said that New York law allows a public figure to recover for "an unauthorized version of his life 'if the presentation is infected with material and substantial falsification and the work was published with knowledge of such falsification or with reckless disregard for the truth.' "13 Finally, in Douglass v. Hustler Magazine,"4° actress and model Robyn Douglass sued Hustler over the publication of nude photographs of her, some of which had already been published in Playboy.141 The court said that there was "some ques-

132. Id. at 1062. See infra note 149 and accompanying text. 133. 551 F.2d 910 (2d Cir. 1977), cert denied, 434 U.S. 834 (1977). 134. Id. at 913. 135. 560 F.2d 1061 (2d Cir. 1977), cert denied, 434 U.S. 1013 (1978). 136. Id at 1066. 137. Id. 138. 2 MEDIA L REP. (BNA) 2008 (S.D.N.Y. Feb. 24, 1977). 139. Id. at 2010 (quoting Spahn v. Julian Messner,Inc, 286 N.Y.S.2d 832, 834). See the discussion of New York privacy law, supra note 89. 140. 769 F.2d 1128 (2d Cir. 1985). 141. Id The falsity aspect of Douglass' claim rested to a large extent on her con- tention that the photo layout implied she had consented to its publication and "that voluntary association with Hustler as a nude model is degrading." She also contended that the photos implied she was a lesbian. Id. at 1135. Douglass was not the first per- COMM/ENT L. J. [Vol. 9:347 tion" as to whether private plaintiffs in false light cases were relieved from having to prove actual malice, as they would be in defamation cases. 142 The court here, however, emphasized the status of the plaintiff, perhaps because she claimed "that she was excused from having to prove actual malice because she is not a public figure."'43 The court found Douglass' claim ridiculous: "[N]ot only is Robyn Douglass no shrinking violet; she is a budding celebrity eager to be seen in the nude by mil- lions of people."'" Public figure Robyn Douglass had to prove actual malice in her false light action. While focusing on the status of the plaintiff, rather than the subject matter of the report, works to the disadvantage of the media in most false light cases,145 the Douglass case demon- strates the possibility that application of the Gertz rule in false light suits sometimes may disadvantage the public-figure plaintiff. Douglass is not the best vehicle for illustrating this since Douglass had already voluntarily appeared in the nude in Play- boy, and, at least arguably, an actress and model's appearance unclad is a matter of public interest.'1 But another all-purpose public figure, say, the First Lady of the United States, might reasonably argue that the unauthorized publication of nude photographs of her in Hustler would not constitute a matter of public interest. Nonetheless, under the approach taken by the Douglass court, such a public figure would have to prove actual malice. While a few of the courts that chose to apply a public/private figure test in false light cases did not bother to explain that choice, most of the courts in this category used Gertz and a pre- son to voluntarily appear unclothed in one mass medium and then complain that the same or similar photos in another medium constituted false light invasion of privacy because of the vulgar and offensive nature of the second publication. See Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341 (N.D. Tex. 1985), off'd, 799 F.2d 1000 (5th Cir. 1986); Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401 (S.D.N.Y. 1980). 142. 769 F.2d at 1141. 143. Id. 144. Id. 145. See, e.g., Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984); Bichler v. Union Bank and Trust Co., 715 F.2d 1059 (6th Cir. 1983), tacated, 718 F.2d 802, 745 F.2d 1006 (6th Cir. 1984) (en bane); Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285 (D.D.C. 1981); Sinatra v. Wilson, .2 MEDIA L. REP. (BNA) 2008 (S.D.N.Y. Feb. 24, 1977). 146. See, e.g., Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401, 405 (S.D.N.Y. 1980) (partially nude photos of an actress "who has occupied the fantasies of many moviegoers over the years" are newsworthy). 1987] FALSE LIGHT 371 sumed relationship between defamation and false light as a justification. This facile approach, focusing on the superficial similarity between defamation and false light (both involve falsity), presents a real danger to unfettered discussion of public issues. The Dresbach court itself, after falling into the trap of equating defamation and false light, provided an articulate justification for distinguishing between the two: "Clearly this society has put a higher value on... public discussion of all issues than on an individual's right to privacy.1 47 But the Dresbach court, like others discussed in this subsection, read invasion of privacy out of the false light tort and failed to recognize that its comments relative to the disclosure form of invasion of privacy should apply with equal strength to false light. Trends in false light cases are impossible to identify. There does not appear to be any discernible set of factors which explain why in one case a court uses the matter-of-public-interest standard and in another the emphasis is on the status of the plaintiff. The only general conclusion that can be extracted from the cases discussed above is that courts which apply the Gertz rule in deciding when to require actual malice fail to recognize the proper conceptual definition of false light and the privacy interests the tort is designed to protect. A disturbing side issue arose in three cases in which the courts focused on the plaintiff's status in applying the actual malice standard. In Rinsley, Wood, and Bicher, the statutes of limitations on libel actions in plaintiffs' respective states had run by the time the actions were filed. However, the statutes of limitations applicable to privacy actions differed, and, therefore, the false light claims of the plaintiffs were not time- barred. 48 Assuming that the statutes of limitations on defamation suits are designed to serve important private and societal interests, allowing plaintiffs to slide their libel claims in through the back door, under the guise of false light, would appear to undermine those interests. 49 Indeed, if applying the Gertz rule rests on the theory that defamation and invasion of

147. 518 F. Supp. at 1291. 148. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1087, (5th Cir. 1984); Bichler v. Union Bank and Trust Co., 715 F.2d 1059, 1062 (6th Cir. 1983); Rinsley v. Brandt, 6 MEDIA L.REP. (BNA) 1222,1223 (D. Kan. Feb. 22,1980), aff'd, 700 F.2d 1304 (10th Cir. 1981). 149. A number of states have held that the statutes of limitations applying to defamation actions. also apply to false light actions. See, e.g., MacDonald v. Time, Inc., 7 MEDIA L. REP. (BNA) 1981,1984 (D.N.J. Aug. 25, 1981), and cases cited therein. COMM/ENT L. J. [Vol. 9:347 privacy are similar claims, applying different statutes of limitations seems to make little sense.

C. Opinions in Which the Standard Is Unclear The frequency of confused or confusing discussion of the fault standard in false light cases in the past decade is alarming. Roughly one-third of the approximately forty opinions re- viewed for this study were unclear as to what standard should be or was being applied in determining whether a showing of actual malice was required for the plaintiff to prevail. In some cases the confusion occurred in dicta when the courts addressed issues which were not essential to the decisions. In both Johnson v. Lexington Herald-Leader 50 and McCor- mack v. Oklahoma Publishing Co.,15l plaintiffs' false light claims failed on the ground of lack of falsity. Nonetheless, in both cases the courts touched on the fault standard. In neither opinion was it clear which standard the court would apply if such a determination were necessary.1 52 Two other cases, Matheson v. Bangor Publishing Co.'" and Jumez v. ABC 1 Records, 5 briefly referred to actual malice as required, but did not discuss why. Matheson involved a seemingly private plaintiff, while Jumez involved a classical guitarist who would appear to be a public figure.155 In two other cases, Fitzgerald v. Penthouse International" and Davis v. High Society Magazine,157 the courts acknowl-

150. 9 MEDIA L. REP. (BNA) 1365 (Ky. Feb. 4, 1983). 151. 613 P.2d 737 (Okla. 1980). 152. In Johnson the court at first said it assumed "simple negligence" would apply to the case. Later in the opinion the court referred to the lack of "even a facial appearance of... reckless disregard as to the falsity of the publicized matter." 9 MEDIA L. REP. (BNA) at 1336. In McCormack the court engaged in a general discussion of the right of privacy, but throughout it is unclear which specific types of invasion of privacy are being discussed. 613 P.2d at 740-42. See also Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341, 1358 n.54 (N.D. Tex. 1985) (publication does not convey a false meaning, but a footnote discusses both public figures and newsworthy events). 153. 414 A.2d 1203 (Me. 1980). 154. 3 MEDIA L. REP. (BNA) 2324 (S.D.N.Y. Apr. 5, 1978). 155. In Matheson, the issue was whether a journalist-defendant in a false light case could be forced to reveal a confidential source. A superior court justice had declared that the identity of the source was "crucial" to plaintiff's burden of proving actual malice. 414 A.2d at 1204. In Jumez the court simply cited New York Times and declared there was sufficient evidence to support a jury finding of actual malice. 3 ME- DIA L. REP. (BNA) at 2327. 156. 525 F. Supp. 585 (D. Md. 1981), rev'd in part, 691 F.2d 666 (4th Cir. 1982). 157. 457 N.Y.S.2d 308, 90 A.D.2d 374 (1982). 19871 FALSE LIGHT

edged the confusion in the false light area but declared that since plaintiffs were limited public figures, actual malice was required."5 8 Since the existence of a public controversy, a matter of public concern, is a critical element in defining a limited public figure,' these cases might be viewed as attempts to cover both bases. Plaintiffs were public figures because they had involved themselves in public issues and, therefore, the matters reported were of legitimate public interest and concern.160 In the remainder of the unclear cases, the confusion seemed to stem from judicial indecision and a resulting effort to cover all the bases. Also evident was uncertainty over the relationship between false light and disclosure of private facts. 161 As these cases show, uncertainty and confusion remain in the area of false light. Some courts have simply applied the actual malice standard, without explaining their reasons for doing so. Others have engaged in lengthy and convoluted explanations, which have provided little more guidance than the flat declara- tions. Plaintiffs who turn to the courts to remedy perceived invasions of privacy and defendants who seek the protection of the first amendment deserve better.

IV Toward an End to Uncertainty In 1984, Gillmor and Barron predicted that the Gertz focus on the status of the plaintiff would eventually prevail in false light cases "in the interest of legal symmetry."'1 2 But that prediction

158. Fitzgerald v. Penthouse Int'l, 525 F. Supp. at 603; Davis v. High Society Maga- zine, Inc., 457 N.Y.S.2d at 316, 90 A.D.2d at 384. In Gertz v. Robert Welch, Inc., the Supreme Court had defined a limited public figure as one who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.... [S]uch persons assume special prominence in the resolution of public questions." 418 U.S. 323, 352 (1974). 159. See also Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Time, Inc. v. Firestone, 424 U.S. 448 (1976). 160. See also Logan v. District of Columbia, 447 F. Supp. 1328 (D.C. Cir. 1978), in which plaintiff was deemed a limited public figure for purposes of his defamation action. In discussing Logan's false light claim the court simply cited Hill and Cantrell and declared that plaintiff must prove actual malice. Id. at 1334. 161. See Cantrell v. ABC, 529 F. Supp. 746 (N.D. 111. 1981); Faucheaux v. Magazine Management Co., 5 MEDIA L. RP. (BNA) 1697 (E.D. La. Aug. 27, 1979); Rafferty v. Hartford Courant, 36 Conn. Supp. 239, 416 A.2d 1215 (1980); Crump v. Beckley News- papers, 320 S.E. 2d 70 (W. Va. 1983). 162. D. GILLMOR & J. BARRON, MAS COMMUNICATION LAw 322 (4th ed. 1984). COMM/ENT L. J. [Vol. 9:347 presupposes the existence of some rational and principled basis for seeking symmetry between two distinct areas of law, defamation and privacy. This article argues that the search for symmetry should focus, instead, on the two related torts of false light and disclosure of private facts, both of which protect the same individual interest. The comments of some courts and scholars notwithstanding, the law of defamation and the law of privacy were rightly de- veloped to serve significantly different personal interests. The law of defamation is designed to protect an individual's reputation. Reputation is defined as "the estimation in which a person, thing, or action is held by others."'16 Definitions of defamation invariably focus on the effects of a particular communication on the victim's relations with others.164 Thus, the focus of defamation is the individual's public persona, the manner in which friends, colleagues, and acquaintances perceive him or her. The harm resulting from defamation consists of a public misperception of one's character. It is the falsehood itself that constitutes the wrong, for if the damaging statement were true, no cause of action would exist. Under the theory of New York Times v. Sullivan and its progeny, public people voluntarily subject their reputations to public scrutiny. Therefore, those who discuss their public personae--their reputations--are enti- tled to greater protection under the first amendment. They are liable for defamation only when actual malice underlies the false statements made about a public person. On the other hand, privacy refers to the right to maintain a private persona and protect it from public scrutiny. According to Judge Cooley, privacy is "the right to be let alone,"'16 and according to Justices Warren and Brandeis, the right to be free from invasion of "the sacred precincts of private and domestic life." ' " The harm resulting from an invasion of privacy consists of "the mental distress from having been exposed to public view,"' 67 from the public being given the opportunity to perceive those aspects of one's character or life that one prefers to keep from public perception. As Professor Nimmer put it,

163. WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY UNABRIDGED 1537 (unabr. 2d ed. 1980)(emphasis added). 164. W. PROSSER & W.P. KEETON ON THE LAW OF TORTS, supra note 62, at 773-78. 165. T.M. COOLEY, A TREATISE ON THE LAW OF TORTS 29 (2d ed. 1879). 166. Warren & Brandeis, supra note 1, at 195. 167. Time, Inc. v. Hill, 385 U.S. at 385. 1987] FALSE LIGHT

"The injury is to a man's interest in maintaining a haven from society's searching eye."'' 6 Falsehood is not at the heart of the injury, but it is the publication of the information itself, whether true or false, that causes the injury. Notwithstanding the protection given to the right of the individual to be free from public perception, the law recognizes that at times the privacy right must yield to the public interest in open communication. Thus, the disclosure of private facts is actionable only when the disclosure would be highly offensive to a reasonable person and does not deal with a matter of legitimate public interest. As Professor Nimmer explains, false light should be viewed as simply a derivative of the disclosure tort, protecting the same individual interest: Once the false light cases are understood as a logical, even a necessary, extension of the private facts cases, the fallacy of equating the false light cases to defamation actions becomes apparent. The injury to the plaintiff's peace of mind which results from the public disclosure of private facts may be just as real where that which is disclosed is not true. It would be ab- surd to hold that the publication of an intimate fact creates liability, but that the defendant is immunized from liability (though the injury to plaintiff's peace of mind is no less) if the intimate "fact" publicly disclosed turns out not to be true, thus putting a premium on falsehood. The sensibilities of the young lady whose nude photo is published would be no less offended if it turned out that her face were super-imposed upon someone else's nude body. The resulting9 humiliation would have nothing to do with truth or falsity.1 Professor Keeton, however, distinguishes false light from disclosure: Recovery for an invasion of privacy on the ground that the plaintiff was depicted in a false light makes sense only when the accoun if true, would not have been actionableas an invasion of privacy. In other words, the outrageous character of the publicity comes about in part by virtue of the fact that some part of the matter reported was false and deliberately so.170 Professor Keeton supports this conclusion by noting that

168. Nimmer, supra note 42, at 958. See also id. at 959 and sources cited therein. 169. Id. at 963. 170. W. PROSSER & W.P. KEETON ON THE LAW OF TORTS, supra note 62, at 865 (emphasis added). COMM/ENT L. J. [Vol. 9:347

"[m]ost people [would be] offended by fictionalized accounts of events in which they were involved as involuntary or even vol- 7 1 untary participants. 1 The emphasized portion of the above quotation is illogical. Consider, for example, the following hypothetical case. A magazine article on the sexual habits of middle-class America de- tails the sex life of an obscure married couple, who did not consent to such a publication. The couple is fully identified, and the account of their marital relationship is accurate, based, say, on the report of an unscrupulous marriage counselor. Under the Restatement's definition of disclosure, it would appear that the couple has a good chance of proving publication of private facts.172 But, under Professor Keeton's conceptualization of false light, if the information in the article were false, the couple would not have an invasion of privacy claim! Ac- cording to Keeton's definition, if the account were true, it would be actionable as a private facts invasion of privacy, yet its falsity would indemnify the publisher. If the article presented what might be considered a "normal" sexual relationship, the publication also would be arguably nondefamatory, leaving the identified and presumably highly distressed couple with no recourse under either defamation or privacy law. The problem with Keeton's definition is that, while it focuses on two elements, falsity and offensiveness, it ignores the heart of the wrong-that it is a privacy-invading communication. Keeton's false light definition is akin to a libel definition stressing the falsity and fault elements but ignoring the need for defamatory content. Keeton seems to be suggesting a tort designed to compensate people for the irritation they may ex- perience as the result of being identified in a non-defamatory, non-privacy-invading, but untrue, communication. Such a tort might go far in stemming what used to be termed the licen-

171. Id. at 865. 172. While the sexual habits of middle America may be a matter of public interest, it is at least arguable that the identity of an individual couple is not. See, e.g., Vas- siliades v. Garfinckel's, 492 A.2d 580, 588-90 (D.C. 1985) (while plastic surgery is a matter of legitimate public interest, photographs of a particular plastic surgery subject are not); Deaton v. Delta Democrat Publishing Co., 326 So.2d 471,474, (Miss. 1976) (invasion of privacy to name four mentally retarded children in an article on special education in a local school); Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295 (1942) (unusual illness is a matter of public interest, but identity of person suffering ailment is not). 19871 FALSE LIGHT tiousness of the press,1 73 but it hardly comports with our twentieth century conception of what constitutes freedom of expression: "[Tihe indispensable democratic freedoms secured by the First Amendment" occupy a "preferred place" in our hierarchy of rights and interests.' To suggest that an individual's interest in being protected from irritation could outweigh such a preferred freedom ignores decades of development of first amendment law and theory. Keeton's conceptualization of false light places much emphasis on the offensiveness of fictionalized accounts. But aside from the area of broadcasting, and there only in regard to profanity and indecency, x75 offensiveness alone has not been deemed sufficient to overcome first amendment rights. Thousands have been offended by sexually explicit films and publications, public gatherings of the Ku Klux Klan and Neo-Nazi groups, sexist representations of women in the media, and public use of indecent and profane language. Yet the offensiveness of such communications has not been deemed sufficient to override the speakers' first amendment rights.17 While Keeton contends that it is the falsity of the statement that constitutes the wrong, Nimmer recognizes that privacy invasion is the heart of the offense: "If the untrue statements in a false light case are not as to matters which if true would be private, then the interest in privacy is by hypothesis nonexis- tent and therefore cannot counterbalance any opposing interest in free speech."''1 7 In other words, the initial and most fundamental question is whether the communication is privacy-invading, just as the most fundamental question in a libel action is whether the words are susceptible of defamatory meaning. If the communication is deemed privacy-invading, the next inquiries involve falsity and offensiveness. While Kee-

173. See, e.g., Bradford, Sentiments on the Liberty of the Press, THE AMERICAN WEEKLY MERCURY, Apr. 25, 1734, reprinted in FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON 38-43 (L.Levy ed. 1966). See also generally L. LEVY, EMERGENCE OF A FREE PRESS (1985). 174. Thomas v. Collins, 323 U.S. 516, 530 (1944). 175. See Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726 (1978), reh'g denied, 439 U.S. 883 (1978). 176. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974); Cohen v. California, 403 U.S. 15 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), qff'd, 106 S. Ct. 1172, rehg denied, 106 U.S. 1664 (1986); Village of Skokie v. National Socialist Party of Am., 69 Ill.2d 605,373 N.E.2d 21 (1978). 177. Nimmer, supra note 42, at 964. COMM/ENT L. J. (Vol. 9:347 ton overstates the case by implying that offensiveness inevita- bly flows from falsity,17 in some instances falsity alone may generate the offensiveness. The recent string of cases resulting from unauthorized publication of photos in Hustler magazine illustrates this point.17 9 In those cases, plaintiffs contended that falsity consisted of the implication that they had voluntarily agreed to have their photos appear in Hustler. Offensiveness likewise consisted of the implication of voluntary association with a magazine described as "tasteless... offensive.., raunchy.., filled with smut and sleaze and slime,.., devoted primarily to sexual exploitation and disparagement of women." 80 Had the women consented to publication of their photos, they could not have claimed invasion of privacy via disclosure. A reasonable person would not consider the authorized publication of a photograph offensive to the one who had authorized its publication. Consent would destroy both falsity and offensiveness.'18 Regardless of whether the falsity and offensiveness elements are related in a particular case, however, the sine qua non of false light, as well as disclosure, is the presence of privacy-invading information. In disclosure cases, newsworthiness is the accepted defense." 2 Nimmer suggests that newsworthiness should provide an absolute defense in false light cases as well, on the theory that if the matter reported is one of public concern, there are no privacy interests to be protected.8 3 While Nimmer's approach is undoubtedly the most desirable from a first amendment perspective, it is also unlikely to be adopted by the Supreme Court.' 4 The reasonable alternative is to acknowl-

178. See the hypothetical case of the couple named in an article on the sexual habits of middle-class America, supra text accompanying note 172. Offensiveness there exists independent of truth or falsity. 179. Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), cert. denied, 106 S. Ct. 1489 (1986); Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341 (N.D. Tex. 1985). See also Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984); Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401 (S.D.N.Y. 1980); Davis v. High Society Magazine, Inc., 457 N.Y.S.3d 308,90 A.D.2d 374 (1982). 180. Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341, 1345 (N.D. Tex. 1985). 181. Id. 182. See supra notes 43-45 and accompanying text. 183. Nimmer, supra note 42, at 964. 184. In light of the Supreme Court's repeated rejection of first amendment protection for knowing or reckless falsehoods, see, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964); Garrison v. Louisiana, 379 U.S. 64 (1964); Time, Inc. v. Hill, 385 U.S. 374 (1967), and rejection of a matter-of-public-interest standard in defamation actions, 1987] FALSE LIGHT edge the Court's declaration that the Constitution provides no protection for "calculatedfalsehood, '' 1s5 and, therefore, to apply the actual malice rule in invasion of privacy actions based on false statements that, if true, would be absolutely privileged as newsworthy. In sum, it is the Hill matter-of-public-interest standard that coincides with the appropriate conceptualization of false light as an offshoot or derivative of the disclosure tort. The matter-of-public-interest standard in both disclosure and false light cases provides the desired legal symmetry referred to by Gilimor and Barron. What of false light actions resulting from reports that do not address matters of public interest? A number of courts have suggested that a negligence standard should be applied in such cases.lM That standard makes sense and squares with the concept that freedom of expression is too important a right to allow liability without fault. 8 7 A negligence standard in such false light cases, however, once again raises the issue of legal symmetry. False light and disclosure are parallel torts. If two reports, one false and one true, invade an individual's privacy and neither report addresses a matter of public interest, what reason is there to impose the burden of proving negligence on the plaintiff in the false light case if the plaintiff in the disclosure action bears no such burden? To impose a negligence requirement in false light but not in disclosure actions would provide greater protection for false statements than for true statements! The answer, of course, is that there is no place for a strict liability standard in disclosure actions either. For a publication to be actionable as disclosure it must be "highly offensive to a

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), it is extremely doubtful that the Court would grant absolute protection to knowing or reckless falsehoods that constitute invasions of privacy. 185. Garrison v. Louisiana, 379 U.S. at 75 (emphasis added). 186. See, e.g., Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1092 (5th Cir. 1984); Fitzgerald v. Penthouse, 525 F. Supp. 585, 602 (D.Md. 1981), rev'd in part,691 F.2d 666 (4th Cir. 1982); Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285, 1292 (D.D.C. 1981); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky. 1981). 187. Our discussions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). COMM/ENT L. J. [Vol. 9:347 reasonableperson. ' ' s' A negligence standard is part of the very definition of disclosure since the tort requires unreasonable conduct." 9 Negligence is defined as "[t]he omission to do something which a reasonable [person], guided by ordinary consider- ations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent [person] would not do."'19 The concept of reasonableness is central to both the legal definition of negligence and the definition of disclosure. A reasonable person would recognize the offensiveness of a privacy-invading communication, and, therefore, a reasonable and prudent person would not publish it. Similarly, the false light tort, incorporating the same reasonable person language, already contains a negligence requirement with regard to the offensiveness of the publication. 9' All that remains to be done is to extend that negligence requirement to the falsity issue in false light actions that do not involve reports on matters of public interest.'92 The above discussion is based upon the principle that false light actions must be limited to nondefamatory, but clearly privacy-invading, falsehoods. The law of defamation is adequate to protect the individual's interest in reputation. There is simply no need, nor is it constitutionally sound, to allow the law of privacy to provide additional protection for reputational interests. As the Kentucky Court of Appeals noted: In this overall first amendment controversy, what previously could not be achieved through the tort law of libel and slander because of the requirement of proving malice is now being "backdoored" through the tort of [false light] invasion of privacy. The resulting effect is a form of prior restraint upon the 93 press.1

Conclusion The most obvious conclusion of this study is that the area of

188. SECOND RESTATEMENT, supra note 11, § 652D (emphasis added). 189. Id. 190. BLACK'S LAW DICTIONARY (5th ed. 1979)(emphasis added). 191. SECOND RESTATEMENT, supra note 11, § 652D. 192. Of course, this would require a dual showing of negligence, first with regard to the offensiveness of the publication and second with regard to falsity. However, this is inevitable since falsity is an additional element of the offense, not present in disclosure cases. 193. Johnson v. Lexington Herald-Leader, 9 MEDIA L. REP. (BNA) 1365, 1367 (Ky. Ct. App. Feb. 4, 1983). 1987] FALSE LIGHT false light invasion of privacy is in a state of disarray. The Supreme Court's failure to address head-on, in Cantrell v. For- est City Publishing Co.,'4 whether the Hill matter-of-public- interest standard in false light actions survived the Gertz rejection of that standard in defamation cases has resulted in disor- der and confusion in the law. Some courts have continued to follow Hill. Others have inferred that Gertz overruled Hill and thus have adopted a standard focusing on the status of the plaintiff. Still other courts have produced muddled opinions, providing little guidance to either litigants or observers. The solution to this confusion is obvious and has been recognized by a number of courts. The Supreme Court announced the standard to be used in false light cases in Time, Inc. v. Hill,195 and reiterated that standard in both Cantrell v. Forest City Publishing Co.'9 and Cox BroadcastingCo. v. Cohn.'9 As the Kentucky Supreme Court said, the United States Supreme Court "has spoken""' and, unless or until the Court modifies its holding in Hill, the first amendment requires that plaintiffs in false light actions prove actual malice when the offending report deals with a matter of public interest. In 1984, the North Carolina Supreme Court refused to recognize the tort of false light invasion of privacy.' 9 The court declared false light actions "inherently constitutionally suspect claims for relief."' The words of the North Carolina court are worth heeding: Two basic concerns argue against recognition of a separate tort of false light invasion of privacy. First, any right to recover for a false light invasion of privacy will often either duplicate an existing right of recovery for libel or slander or involve a good deal of overlapping with such rights. Second, the recognition of a separate tort of false light invasion of privacy, to the extent it would allow recovery beyond that permitted in actions for libel and slander, would tend to add to the tension already existing between the first amendment and the law of torts in cases of this nature.201

194. 419 U.S. 245 (1974). 195. 385 U.S. 374 (1967). 196. 419 U.S. 245 (1974). 197. 420 U.S. 469 (1975). 198. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky. 1981). 199. Renwick v. News & Observer, 310 N.C. 312, 326, 312 S.E.2d 405, 413 (1984). 200. Id., 312 S.E.2d at 413. 201. MLat 323, 312 S.E.2d at 412. See also Sullivan v. Pulitzer Broadcasting Co., 12 COMM/ENT L. J. [Vol. 9:347

The North Carolina Supreme Court's rejection of the false light tort was based on what the current state of affairs is, rather than what it ought to be, in the area of false light: dis- tortion of the conceptual definition of the tort by courts across the country and widespread confusion over the elements and requirements of the wrong. Courts must recognize the distinction between a right to reputation and a right to privacy, and restrict plaintiffs to the appropriate theory of recovery. They must recognize false light as a logical extension of the disclosure tort, aimed at protecting the private persona from public scrutiny. They must reject the dangerous notion that personal vexation or irritation is adequate to overcome first amendment rights. By utilizing the Hill matter-of-public-interest standard to determine when proof of actual malice is required in false light cases, courts will uphold the first amendment principle that the individual's right to be let alone must bow to the public's right to receive an unfettered flow of information on matters of public concern and interest.

MEDIA L. REP. (BNA) 1303 (Mo. Ct. App. Nov. 5, 1985)(rejecting the false light tort in Missouri).